When it is your word against theirs: Why you should (and probably can) record phone calls

phonerecording

photo credit: Trentslist.org

Once upon a time I recorded a phone call that netted almost $2,000 in payment to me. I didn’t concern myself at the time as to whether the call was being taped legally. Why? Because the caller was a rogue bill collector who was clearly harassing me and breaking federal laws in the process about a debt that wasn’t even ours. The way I saw it (again, at the time), my liability of breaking the law was a moot point because their violations of federal law were already so egregious.

I suspected that my call was, in fact, recorded illegally but I knew this at face value. The caller was located in a state that required all parties to consent to the call. (They strategically chose to do business in that state for that very reason!) A couple of years later the State Attorney General shut this business down and slammed them hard with fines for their illegal activities. But, I am getting ahead of myself in this story… it was people like me who helped take them down because I took the face value of the laws and went outside the box to arm myself with legal remedies. I’ll share my part in how it was done.

The key point is that in my case there were loopholes that were afforded to me when it came to the legality of this phone call being recorded.

If I hadn’t recorded that call it would have been my word against theirs and I never would have gotten such a large settlement outside of a courtroom setting.  Technically I could have won more if I had taken the case to a judge, but for me it was the principle of the issue: Don’t abuse me or lie to me or you will pay.

Because of that call, I learned some interesting facts from my own research and from my own attorney about when you can (or can’t) record phone calls.

Today I want to share this information with you.

So, if you are dealing with some of the following examples, this post is for you!

  • An abusive debt collector, regardless if you owe anyone
  • A company that is giving you the runaround
  • A government agency that changes their story or information every time you call
  • Any situation where you need to prove that someone said something on a certain date at a certain time, or prove the outcome of a particular telephone conversation

I’ve hesitated to tell you this story and explain the outcome because I know that once I do that, someone will misinterpret my information or come back and hold me liable if their experience turns out differently. So before I share what I learned and encourage you to consider taping important phone conversations, I must be very clear: I am not an attorney, nor do I play one on the internet. It is up to YOU to verify this information with an attorney of your own. I assume no liability in sharing this helpful information. If you break the law or if the information provided here is incomplete or changes without notice, I am not responsible. This post is for informational purposes only and not legal advice.

Let’s start with some basics:

We’ve all heard it when calling a customer service line: “This call may be recorded for training purposes.” Most of us are so conditioned to hearing it that we don’t understand the importance of this notification.

You have the choice of terminating the call if you don’t agree to be recorded, or staying on the line and allowing your call to be recorded. Most people just stay on the line and carry on with their business and don’t think twice about it.

Why do companies do that? Well, it boils down to giving legal disclosure. Every company is located in a state that is considered a ONE PARTY state or TWO PARTY state when it comes to recording phone calls. They are covering their bases, basically.

The key point here is this: Federal law permits phone calls to be recorded for business purposes. 

What is the difference between a ONE PARTY state and TWO PARTY state?

In a one party state, only ONE person in the conversation needs to be aware that the call is being recorded. Ultimately, that is YOU. As long as YOU are aware the call is being recorded, no one else in the call needs to be notified.

In a two party state, BOTH (or all) parties must be given disclosure that the call is being recorded. This is why companies give the recorded notification when you call customer service. They want to be sure a caller from a two party state is being given their full legal disclosure and notification. You see, the laws start getting foggy at about this point because what if you are in a one party state and want to record a call that is taking place in a two party state? And, does state law apply or does federal law apply?

In order to understand the complexities and legalities, you need to know some basics.

There are 12 (now 11) states that require all party consent. They are:

California
Connecticut
Delaware
Florida
Illinois (a year after I wrote this, it was found to be unconstitutional to require two party consent)
Maryland
Massachusetts
Michigan
Montana
New Hampshire
Pennsylvania
Washington

There are 39 states that require one party consent. They are:

Alabama
Alaska
Arizona
Arkansas
Colorado
District of Columbia
Georgia
Hawaii
Idaho
Illinois (as of 2014)
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming

In all 50 states and through federal law, it’s considered illegal to record telephone conversations outside of one party consent. There are a couple of exceptions. In the state of California, one party consent can be applied only under circumstances in which one party is involved in criminal activity which would include extortion or blackmail. In the state of Arizona, the subscriber to a telephone service can record telephone conversations with no party consent when criminal activity is involved. Other than those two known exceptions, all other recordings outside of those states that permit one party consent are a violation of state and federal law.

So, what were the loopholes I used?

First of all, I knew the caller was located in a two-party state. In this case, it was the state of Illinois. I didn’t bother myself with too much worry about state law vs. federal law, or one party vs two party, or even if the call was crossing state lines. This is because I armed myself with ammunition to beat any law that would have applied!

You see, the call fell under federal ADA laws and was considered “enhanced note taking“. Secondly, I found case law that allowed me precedence in recording the conversation. I unearthed a 1990 decision by the Illinois Appellate Court in, Illinois vs. Jansen. In this case the court ruled that the use of a recorder is merely enhanced note taking when the person doing the recording is not a government agent.

Now that I covered my butt in the legality of the call, I still wasn’t in the clear. Legal or not, it still meant that if I sued I would have to argue the legality of the call and that gets costly when you are paying an attorney. Again, I didn’t worry about that because I bypassed that formality entirely. You see, even if a court rules that your recording cannot be used as evidence in a case, A TRANSCRIPT OF THE CALL CAN BE SUBSTITUTED INSTEAD.

Did you hear that? Let me say it again…

I technically recorded a call illegally (based on the face value of state and federal laws).

Because there was case law that gave exceptions, I used that case law to my advantage.

Because I never intended to use the recording as evidence in a courtroom setting, it fell under “enhanced note taking” through federal law.

If I did end up taking this to court, a simple transcript of the call would have been sufficient as evidence. The recording itself was a moot point.

End of story.

So, if you are having difficulty remembering conversations, chances are you can record the calls. If you are having difficulty proving something someone said, chances are you can record the calls. And, if you are trying to nail someone’s ass and intend to sue them or hold them accountable in any way, regardless of the state you live in, a simple transcript of your ‘enhanced note taking’ will likely suffice as evidence.

Now you don’t have to worry about situations where it is your word against theirs ever again.

You are welcome. 🙂

About The Author

Torrey Shannon

My name is Torrey Shannon and I am a writer, author, blogger, movie consultant, speaker, veteran's advocate and Blue Star Mom. I am also a full-time caregiver and spouse of a wounded warrior. My husband survived a gunshot wound to the head in a gunfight in Iraq in 2004 after serving in the Army for more than 23 years. We spent three years of his recovery at Walter Reed Army Medical Center. He has severe PTSD and suffered a traumatic brain injury. Dealing with the invisible wounds of war first-hand allows me to bring a human element to the problems our military communities face. Blogging gives me the chance to do what I love the most: write about life after combat and help create awareness and solutions for military members and their families. When I am not writing here, I freelance for a variety of publications and media outlets and am currently writing a book.